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ELRCDismissedPetition (Employment and Labour Relations Court, Nairobi)· [2021] KEELRC 507 (KLR)

Omondi v Wahome & 3 others (Petition E084 of 2021) [2021] KEELRC 507 (KLR)

Employment and Labour Relations Court
2 November 2021
NMNzioki wa Makau
1,882 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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The Employment Court refused to assign a three-judge bench to a teacher's dismissal case, ruling it an ordinary employment dispute that one judge can decide.

What this practically means

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Executive summary

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The Petitioner applied by notice of motion dated 20th September 2021 for certification of his Petition as raising substantial questions of law under Article 165(3)(d)(ii), for reference to the Chief Justice for empanelment of a bench of not less than three judges under Article 165(4) of the Constitution and Section 21 of the Employment and Labour Relations Court Act. The questions he identified were whether the EACC can bar from public employment an employee not convicted under Section 64 of ACECA, engaging the balance between integrity in public office and the Article 50 presumption of innocence; and the constitutionality of Sections 42(1) and 47(6) of the Employment Act, 2007 for discriminating against probationary employees. The 1st and 2nd Respondents opposed, contending the real issue was the Petitioner's dismissal for lying in his Chapter 6 self-declaration form. The 3rd Respondent opposed on grounds that the issues concern the Petitioner's individual integrity and that the unconstitutionality of Section 42(1), as declared in Monica Munira Kibuchi v Mount Kenya University, applies mutatis mutandis to Section 47(6). The Court found nothing substantial in the Petition, holding it plainly an ordinary employment dismissal suit determinable by a single Judge, and that certification was sought only to delay the case. The motion was dismissed with costs to all Respondents. Significantly, the Judge recused himself, directing the Principal Judge to place the Petition before another Judge for directions on the single remaining question of the fairness of the dismissal, with mention set for 8th November 2021.

Key legal issues

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01

Whether the Petition raises substantial questions of law under Article 165(3)(d)(ii) for certification to the Chief Justice

Holding

It does not; the Petition is an ordinary employment dispute with nothing constitutional about it and is within the competence of a single Judge

Reasoning

The Court reviewed the amended Petition and found that its gist is the summary dismissal of the Petitioner from employment, an ordinary cause matter. The Court noted it had already determinable parts of the claim in a prior ruling, that one issue raised (Section 42(1) constitutionality) had already been settled in Monica Munira Kibuchi, and concluded certification was sought merely to delay the case and lend legitimacy to a weak claim.

p. 2
02

Whether the Judge could fairly continue hearing the Petition after ruling against certification

Holding

The Judge recused himself and directed the Petition be placed before another Judge

Reasoning

Having expressed strong views on the merits and the frivolousness of the certification application, the Judge considered that his position would not allow him to dispassionately hear the Petitioner, and therefore recused himself and referred the Petition to the Principal Judge for allocation to another Judge for expeditious disposal.

p. 2

Legal principles established

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  • A single Judge of the ELRC can determine employment dismissal disputes even where constitutional issues are asserted; certification under Article 165(4) is reserved for genuinely substantial questions of law

Court orders

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  1. 1.The notice of motion application dated 20th September 2021 is dismissed
  2. 2.Costs awarded to the 1st, 2nd, 3rd and 4th Respondents
  3. 3.The Judge recused himself and directed that the Petition be mentioned before the Principal Judge for placement before another Judge
  4. 4.Mention on 8th November 2021 before the Principal Judge for directions on the remaining question in the Petition
  5. 5.Directions to be given for filing of submissions and setting of a judgment date

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 165(3)(d)(ii), Article 165(4), Article 50, Chapter 6
  • Employment and Labour Relations Court ActSection 21
  • Employment Act, 2007Sections 42(1), 47(6), 49(1)
  • Anti-Corruption and Economic Crimes Act (ACECA)Section 64

Cases cited (1)

  • Monica Munira Kibuchi & 6 Others v Mount Kenya University; Attorney General (Interested Party)
    [2021] eKLR
Jurisdiction invoked
Article 165(4) of the Constitution; Section 21 of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Omondi v Wahome & 3 others (Petition E084 of 2021) [2021] KEELRC 507 (KLR)", Case Analysis (2021). Petition (Employment and Labour Relations Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/507/eng@2021-11-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.